Ontario Court of Appeal decision informed by complainant’s motive to fabricate evidence

Law360 Canada (February 12, 2026, 8:02 AM EST) --

John L. Hill

The fabrication of a story alleging that a crime was committed would necessarily result in an acquittal. Proving such motivation can be tricky. Defence counsel for Ryan Alexander Stuart chose to confront a complainant of sexual assault directly by asking a simple question: “Is it fair to say, ma’am, that you were concerned about having sex with Ryan and that it was going to interfere or harm your chances to get back with your ex?”

At trial, it was undisputed that Stuart and the complainant engaged in penile-vaginal intercourse on July 18, 2022. The sole issue was whether the complainant consented. The complainant, the only witness, testified that after attending a powwow with Stuart on June 17 and staying overnight at his home, she awoke the next morning to find Stuart removing her underwear and engaging in sexual intercourse without her consent, despite her verbal and physical resistance.

During cross-examination, defence counsel asked the question quoted above, suggesting that the complainant fabricated the allegation to preserve her chances of reconciling with her ex-partner. The Crown objected, arguing the question implied prior sexual activity and engaged s. 276 of the Criminal Code. The trial judge agreed the question likely crossed into prohibited territory and required rephrasing. Defence counsel complied, asking a more general question about motive, which the complainant denied. The defence later abandoned the fabrication theory. The trial judge found the complainant credible and reliable and convicted Stuart of sexual assault. He was also convicted of sexual harassment.

The criminal harassment conviction stemmed from Stuart’s repeated communications with the complainant after the assault, despite her clear requests for no contact. Evidence showed that the appellant contacted her via blocked or unknown numbers and social media platforms and left a voicemail stating he could see her car while she was at the gym, causing her to fear for her safety. After continued contact despite warnings, the complainant contacted the police.

The Crown argued that the appellant’s conduct constituted repeated communication under s. 264(2) of the Criminal Code and that he knew it was harassing. The defence argued that the communications were limited and not clearly attributable to Stuart. The trial judge delivered brief oral reasons and convicted Stuart, finding that there were persistent attempts to contact the complainant despite her efforts to block him and her repeated requests for no contact.

Stuart appealed both the sexual assault conviction and his being found guilty of sexual harassment. The Alberta Court of Appeal heard arguments on appeal on Nov. 4, 2025, and delivered its reasons on Dec. 5, 2025 (R. v. Stuart, 2025 ABCA 404).

Stuart’s counsel argued that the trial judge erred by restricting cross-examination and that it caused the trial to be an unfair one. Further, the trial judge gave insufficient reasons for the conviction for criminal harassment.

Did the trial judge improperly restrict cross-examination by wrongly applying s. 276 of the Criminal Code? Section 276 governs the admissibility of evidence of a complainant’s sexual activity other than the activity at issue and requires a formal application and ruling before such evidence can be admitted.

Stuart argued that the trial judge erred in concluding that a question suggesting the complainant fabricated the allegation to preserve her chances of reconciling with her ex-partner engaged s. 276. The Crown responded that no formal ruling was made, or that any decision was a trial-management ruling entitled to deference.

The Appeal Court rejected the Crown’s position, finding that the trial judge effectively prohibited the question on the basis that it engaged s. 276 without following the required procedure. The court emphasized that evidentiary gatekeeping under s. 276 requires a correct legal ruling, not an informal compromise.

The court held that the impugned question did not imply prior sexual activity with the ex-partner. Its relevance lay in suggesting a motive to fabricate, which assumed a prior relationship but not a sexual one. The trial judge erred in presuming the relationship “must” have been sexual. Recent case law confirmed that generic references to past relationships do not necessarily engage s. 276 unless they clearly imply sexual activity.

By prohibiting the question and forcing defence counsel to ask a vague, open-ended alternative, the trial judge improperly restricted both the manner and scope of cross-examination. This prevented the defence from advancing its motive-to-fabricate theory and undermined the right to make a full answer and defence. As a result, the motive defence was effectively eliminated, leading to an unfair trial and thus allowing the appeal on the sexual assault conviction.

The Appeal Court held that the convictions for sexual assault and criminal harassment were intertwined because an essential element of criminal harassment is that the complainant reasonably feared for her safety, which depended in part on whether a sexual assault had occurred. Since the sexual assault conviction was set aside, the criminal harassment conviction could not stand and was also set aside.

The court further agreed that the trial judge’s reasons for the criminal harassment charge were insufficient to permit meaningful appellate review. While the record showed that the trial judge implicitly accepted the Crown’s submissions on the frequency of the communications and Stuart’s knowledge that the complainant felt harassed, the reasons did not address the critical element of whether the complainant’s fear for her safety was reasonable. Neither the trial judge nor counsel analyzed that element, leaving the appellate court unable to determine whether it was considered or how it was resolved.

As a result, the court allowed the appeal, set aside both convictions and ordered a new trial. Stuart was granted continued judicial interim release pending the new trial, subject to conditions and further direction by the trial court.

John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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